On appeal from the New Jersey Department of Environmental Protection, Agency Docket No. PEA050001-246106.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 3, 2007
Before Judges Wefing, Parker and Lyons.
R.A. Reiff, Inc. (Reiff), a motor fuel hauler, and Edward J. Sweeney & Sons, Inc. (Sweeney), a motor fuel supplier, appeal from a final administrative order and penalty issued by the New Jersey Department of Environmental Protection (DEP) for violation of the Water Pollution Control Act (WPCA), N.J.S.A. 58:10A-1 to -20, the Underground Storage of Hazardous Substances Act (USHSA), N.J.S.A. 58:10A-21 to -35, and regulations promulgated thereunder. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
On November 15, 2004, DEP representatives inspected Egg Harbor Gas & Go (Gas & Go), a gas station which operates with on-site underground storage tanks for the retail sale of motor fuels. They determined that the registration of all five of the underground storage tanks had expired on September 30, 2001. In addition, the DEP inspectors found that Sweeney had shipped and Reiff had delivered 5000 gallons of unleaded gas to the Gas & Go storage tanks on November 13, 2004. As a result of this inspection, on February 1, 2005, the DEP issued an administrative order and notice of civil administrative penalty assessment to Reiff and Sweeney. The administrative order and notice of civil administrative penalty assessment found, in paragraph six, that "[a]t the time of inspection, a Gas & Go representative provided documentation to [DEP] representatives that as recently as November 13, 2004, Sweeney shipped and Reiff delivered 5000 gallons of unleaded gasoline to the unregistered USTs at Gas & Go." Reiff and Sweeney were cited for violating N.J.A.C. 7:14B-1.8(b) (subsequently recodified at N.J.A.C. 7:14B-5.9(b)), which provides that "[n]o person or business firm shall introduce hazardous substances into a regulated underground storage tank which is not properly registered with the [DEP] pursuant to N.J.A.C. 7:14B-2.1." A fine in the amount of $15,000 was assessed.
Reiff and Sweeney responded with a hearing request, and the case was transmitted as a contested case to the Office of Administrative Law. An initial decision, based on the submission of pleadings by the parties, was rendered by Administrative Law Judge John R. Tassini on February 22, 2007. In a detailed, thorough, and comprehensive opinion, Judge Tassini concluded that Reiff and Sweeney were subject to N.J.A.C. 7:14B-1.8(b); that the DEP was authorized to assess civil administrative penalties; that appropriate regulations would indicate the violation was one of moderate seriousness and involved moderate conduct, such that the fine should be between $10,000 and $20,000; that the DEP has discretion to move from the mid-point of that penalty range based on specific factors; that based on those factors, the penalty should be at the lowend of the penalty range, that is $10,000; and that the grace period law does not provide relief with respect to the assessment of this penalty.
On March 30, 2007, the Commissioner of the DEP concluded that Judge Tassini's decision was well supported by the factual record and the applicable legal authorities and adopted it. This appeal ensued.
On appeal, Reiff and Sweeney present the following arguments for our consideration:
RESPONDENT IS NOT LIABLE UNDER N.J.A.C. 7:14B-1.8(b) BECAUSE HE IS NOT AN INCLUDED CLASS SUBJECT TO THE REQUIREMENTS.
LEGAL ANALYSIS OF PENALTY ASSESSMENT.
Reiff and Sweeney argued below and repeat their argument here that the language of N.J.A.C. 7:14B-1.8(b) is not applicable to them since they are not owners or operators of underground storage tanks. The regulation at issue provides that "[n]o person or business firm shall introduce hazardous substances into a regulated underground storage tank which is not properly registered with the [DEP] pursuant to N.J.A.C. 7:14B-2.1." Reiff and Sweeney argue that since Chapter 14B of the administrative regulations deals with underground storage tanks, the persons or business firms referred to ...